IN RE INTEREST OF ANDREW M., JR.

• Decision Date: 13 February 2001
• Docket Number: No. A-00-605.,A-00-605.
• Citation: 622 N.W.2d 697,9 Neb.App. 947
• Parties: In re INTEREST OF ANDREW M., JR., and Marceleno M., children under 18 years of age. State of Nebraska, Appellee, v. Andrew M., Sr., Appellant.
• Court: Nebraska Court of Appeals

622 N.W.2d 697

9 Neb.App. 947

In re INTEREST OF ANDREW M., JR., and Marceleno M., children under 18 years of age.

State of Nebraska, Appellee, v. Andrew M., Sr., Appellant.

No. A-00-605.

Court of Appeals of Nebraska.

February 13, 2001.

Dennis R. Keefe, Lancaster County Public Defender, and Margene M. Timm, Lincoln, for appellant.

Gary E. Lacey, Lancaster County Attorney, and Rodney D. Reuter, Lincoln, for appellee.

SIEVERS, INBODY, and MOORE, Judges.

INBODY, Judge.

INTRODUCTION

Andrew M., Sr. (Andrew), the natural father of Andrew M., Jr., and Marceleno M., appeals the adjudication of the minor children and the termination of his parental rights. He claims that his due process rights were violated by the admission of evidence which was more recent than the time period alleged in the motion to terminate parental rights and that the juvenile court erred in adjudicating the children pursuant to Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1998) and in terminating his parental rights pursuant to Neb.Rev.Stat. § 43-292(1) (Reissue 1998).

STATEMENT OF FACTS

On November 18, 1998, an adjudication petition and petition for termination of parental rights was filed. The adjudication petition alleged that the children were juveniles within the meaning of § 43-247(3)(a) because said children lacked proper parental care by reason of the fault or habits of Andrew, in that Andrew did not have contact with the children since 1997 and failed to provide said children with physical or emotional support since that time. The petition for termination of parental rights sought termination pursuant to § 43-292(1) and specifically alleged that Andrew had abandoned the children for 6 months or more immediately prior to the filing of the termination petition and that termination was in the children's best interests.

The combination adjudication and termination hearing was held on January 28 and 31 and February 1, 2000. Evidence adduced at the hearing established that Andrew was the children's noncustodial parent, that he was obligated to pay $50 per month in child support for the two children, and that since at least October 1997, he has resided in Washington State. The evidence further established that Andrew paid child support of $600 per year in both 1997 and 1998. From January 1 to June 1, 1999, he paid $300 in child support, and on June 1, he was $606.60 in arrears on his child support obligation.

Erik Lipins, a caseworker for the Department of Health and Human Services, was assigned to the case from March 1997 to October 1998. Lipins testified that he became aware of Andrew's Washington address in October 1997 and that he sent Andrew a copy of an October 27, 1997, court report. On October 31, Andrew left a message identifying himself as the children's father and gave a telephone number where he could be reached. On November 17, Lipins received a letter from Andrew indicating that he wanted "to exercise [his] legal rights as the biological parent." Andrew reiterated his desire for custody of the children on several occasions, including telephone conversations with Lipins on December 5, 1997, and April 26, 1998, and through counsel at an April 14, 1998, court hearing.

Lipins further testified that Andrew was in Lincoln, Nebraska, from December 5 through 17, 1997. During that 13 day time period, Andrew had a visit with his children. Thereafter, in late 1997 or early 1998, Lipins testified that a home study was conducted of Andrew's Washington home for the purpose of determining if Andrew's home was appropriate for the children to visit. Based upon the results of that home study, Lipins testified that he determined that Andrew did not have a residence that was appropriate for the children. Lipins testified that from December 17, 1997, to October 1998, there was no further contact between Andrew and the children. Charlie Bennett, another Department of Health and Human Services worker, testified that Andrew did not have any contact with the children from May 1 to November 18, 1998.

The children's foster mother testified that in March or April 1999, Andrew telephoned the children and spoke to them for 2 to 3 minutes total and that the conversation centered around Andrew's asking the children what they wanted for their birthdays. The children later received a birthday card, some cookies, and $10 each from Andrew. The foster mother testified that the next contact between Andrew and the children occurred when Andrew telephoned the children 4 or 5 days prior to Christmas 1999. This conversation lasted 5 to 7 minutes and consisted of Andrew's asking the children what they wanted for Christmas. According to the foster mother, Andrew did send Christmas gifts to the children, which arrived the second week of January 2000, and Andrew telephoned the children to make sure that they had received the presents. This conversation lasted 2 to 3 minutes and was the last contact that the children have had with Andrew, despite the fact that the foster mother informed Andrew that he could telephone the children at any time.

Kathleen England, a psychotherapist who had counseled the children since January 1997, testified that the children need permanence, stability, predictability, routine, and knowledge that their caretakers will provide for them in the long term. Based upon the children's needs and Andrew's lack of regular contact with the children, England opined that termination of Andrew's parental rights was in the children's best interests.

On May 16, 2000, the juvenile court found that the State had proved by a preponderance of the evidence that the children lacked proper parental care by the reason of the fault or habits of Andrew in that Andrew did not have contact with the minor children during the time period from December 1997 up until November 18, 1998, and failed to provide said children with emotional support during that timeframe. Further, the juvenile court found that the State had proved by clear and convincing evidence that Andrew had abandoned the children for 6 months or more immediately prior to the filing of the termination petition and that termination was proper pursuant to § 43-292(1). The court further found that it was in the children's best interests to terminate the parental rights of Andrew. Andrew has timely appealed to this court. The natural mother's parental rights have also been terminated, but she did not appeal that determination, and her rights are not at issue in this appeal.

ASSIGNMENTS OF ERROR

Andrew claims that (1) the juvenile court erred in adjudicating the children, (2) his due process rights were violated by the admission of evidence which was more recent than the time period alleged in the motion to terminate parental rights, and (3) the juvenile court erred in terminating his parental rights.

STANDARD OF REVIEW

Juvenile cases are reviewed de novo on the record, and the appellate court is required to reach a conclusion independent of the juvenile court's findings; however, when the evidence is in conflict, the appellate court will consider and give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other. In re Interest of Sarah K., 258 Neb. 52, 601 N.W.2d 780 (1999); In re Interest of Tabatha R., 255 Neb. 818, 587 N.W.2d 109 (1998).

ANALYSIS

Adjudication.

Andrew's first assignment of error is that the juvenile court erred in finding that evidence was sufficient to support its finding that the children were children within the meaning of § 43-247(3)(a).

The relevant portion of § 43-247 applicable to this case provides as follows: "The juvenile court in each county as herein provided shall have jurisdiction of ... (3) Any juvenile (a) ... who lacks proper parental care by reason of the fault or habits of his or her parent, guardian, or custodian." The quantitative proof required for an adjudication based on § 43-247(3)(a) is "a preponderance of the evidence." See Neb.Rev.Stat. § 43-279.01(3) (Reissue 1998).

In the instant case, the evidence established that Andrew had no contact with the children from January 1998 to November 18, 1998, which was the date the adjudication petition and petition for termination of parental rights was filed. There was no explanation for Andrew's lack of contact with the children other than a lack of proper parental care. Based on the evidence presented, we find that the State did prove by a preponderance of the evidence that the children were children within the meaning of § 43-247(3)(a). Consequently, this assignment of error is without merit.

Alleged Due Process Violation.

Andrew's second assignment of error is that his due process rights were violated by the admission of evidence which was more recent than the time period alleged in the motion to terminate parental rights. More specifically, Andrew contends that although the November 18, 1998, petition for termination of parental rights alleged that he had abandoned the children "for six months or more immediately prior to the filing of the petition," the juvenile court allowed the State to present evidence of Andrew's lack of contact with his children, the caseworker, and the foster parent for the time period after the date of the filing of the termination petition up to the date of the termination hearing.

Notwithstanding that the Nebraska rules of evidence do not apply in dispositional hearings arising under the Nebraska Juvenile Code, the requirements of due process control in determining the type of evidence which may be used by the State in an attempt to prove that parental rights should be terminated. In re Interest of Natasha H. & Sierra H., 258 Neb. 131, 602 N.W.2d 439 (1999); In re Interest of Constance G., 254 Neb. 96, 575 N.W.2d 133 (1998).

"`"`[F]undamental due process is difficult to define. With reference to the evidence that is to be considered in a parental rights termination case, it is... obvious that in determining whether...